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    A ‘false’ works agreement, which reduces the standard weekly working hours for permanent staff, also applies to leased employees. However, the pay of leased employees remains governed by the applicable collective bargaining agreement, rather than by the ‘false’ works agreement. Therefore, leased (part-time) employees benefitted from the reduced working hours by the ‘false’ works agreement, but received full pay based on the collective bargaining agreement.


Sarah Lurf
Sarah Lurf is an associate with Schima Mayer Starlinger Rechtsanwälte GmbH in Vienna, sms.law.

    The Austrian Supreme Court has held that the employer must notify the Employment Service (AMS) when it is contemplating collective redundancies, even if they are carried by mutual agreement. The duty of notification is triggered if the employer proposes a mutual termination agreement to a relevant number of employees, provided the offer is binding and can be accepted by the employees within 30 days. If the employer fails to notify the AMS, any subsequent redundancies (or mutual terminations of employment occurring on the employer’s initiative) are void, even if effected after 30 days.


Andreas Tinhofer
Andreas Tinhofer is a partner at MOSATI Rechtsanwälte, www.mosati.at.

    For workers without a fixed workplace, travelling time between their place of residence and the first customer and travelling time between the last customer and the place of residence constitutes working time.


Dr. Pieter Pecinovsky
Dr. Pieter Pecinovsky is Of Counsel at Van Olmen & Wynant in Brussels www.vow.be, Assistant at Leuven University and Invited Professor at Université Catholique de Louvain.

    The Court of Appeal has confirmed that an expectation that a disabled employee would work long hours was a ‘provision, criterion or practice’ in a disability discrimination claim regarding reasonable adjustments. It also held that, on the facts, the employer’s conduct had caused the employee to resign and this entitled him to claim constructive unfair dismissal.


Tom McEvoy
Tom McEvoy is an Associate Solicitor at Lewis Silkin LLP.

    The Employment Appeal Tribunal has ruled both non-guaranteed and voluntary overtime should be included in the calculation of holiday pay.


Soren Kristophersen
Soren Kristophersen is a Legal Assistant at Lewis Silkin LLP.

    The Supreme Court has ruled that it is at the discretion of the competent national court to assess whether periods of stand-by time are working time. In doing so, the court should apply Romanian law as interpreted in the light of ECJ case law.


Andreea Suciu
Andreea Suciu is the managing partner of Suciu I The Employment Law Firm.

    The Oporto Court of Appeal held that the employee’s availability 24 hours per day, 6 days per week, breaches the employee’s right to rest. However, such breach does not qualify the availability periods as overtime. The Court also found that the continuous use of a GPS system breached the employee’s right to privacy.


Dora Joana
Dora Joana is a managing associate with SRS Advogados, Lisbon.

    In its follow-up judgment to the ECJ’s preliminary ruling in the Hälvä case (C-175/16), the Finnish Supreme Court has held that ‘relief parents’ relieving foster parents in a child protection association on the latter’s holidays fall within the scope of the Finnish Working Hours Act even though the work was performed in the homes provided by the association for the children to live in. Therefore, the relief parents were entitled to the rights guaranteed by the Act (subject to the fact that some of their claims had expired).


Janne Nurminen
Janne Nurminen is a Senior Associate with Roschier in Helsinki, www.roschier.com.

    Two differently constituted Employment Appeal Tribunals (‘EATs’) have recently considered whether it is sex discrimination to pay men on parental leave less than women on maternity leave. In Capita, the EAT decided that it was not direct sex discrimination to fail to pay full salary to a father taking shared parental leave, in circumstances where a mother taking maternity leave during the same period would have received full pay. However in Hextall, the EAT has indicated that enhancing maternity pay but not pay for shared parental leave may give rise to an indirect sex discrimination claim by fathers.


Ludivine Gegaden
Ludivine Gegaden is a Trainee Solicitor at Lewis Silkin LLP.

    The transferee in this case attempted to replace the transferred employees’ salaries with lower in accordance with its collective agreement, compensating for the reduction by means of a ‘personal allowance’, which it then proceeded to reduce by a set percentage based on the age of the employees each time there was a wage increase. The court held that this ‘basket comparison’ method of harmonising the wages of old and new staff was at odds with Directive 2001/23, rejecting the transferee’s argument that the ‘ETO’ provision in that directive permits such an amendment of the terms of employment.


Shamy Sripal
Shamy Sripal works for the Department of Labour Law of Erasmus School of Law.
Case Reports

2018/28 The right to equal pay for temporary agency workers includes travel time allowances (NO)

Tijdschrift European Employment Law Cases, Aflevering 3 2018
Trefwoorden Temporary agency work, Other forms of discrimination
Auteurs Kajsa Louise Tafjord Normannseth en Stein Evju
SamenvattingAuteursinformatie

    Directive 2008/104/EC (Temporary Agency Work Directive) is implemented by means of the Norwegian Working Environment Act and provides for equal pay between regular workers and temporary agency workers. The Supreme Court has held that, in domestic law, the concept of ‘pay’ includes allowances for travel time and therefore a temporary agency worker was entitled to the same allowance as his permanent colleagues.


Kajsa Louise Tafjord Normannseth
Kajsa Louise Tafjord Normannseth is an associate with Hjort DA in Oslo.

Stein Evju
Stein Evju is a professor emeritus at the Department of Private law, University of Oslo.

    The German Federal Labour Court has held that it was justifiable for the employment of an actor to be limited in time because of the “type of work” involved and the fact that the work was with a film production company, even though the actor was given a number of fixed term employment contracts over around 18 years.


Paul Schreiner
Paul Schreiner is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

Jana Voigt
Jana Voigt is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

    The general protection against dismissal under Austrian labour law only applies if at least five employees are employed permanently. The special provisions for air carriers under Austrian law only apply to air carriers that have their principal place of business in Austria. Whether foreign businesses and their employees employed outside Austria should be afforded protection against dismissal remains unresolved.


Hans Georg Laimer
Hans Georg Laimer is a Partner at zeiler. partners Rechtsanwaelte GmbH in Vienna, Austria. He represented the defendant in the court procedure.

Lukas Wieser
Lukas Wieser is an Attorney at Law at zeiler.partners Rechtsanwaelte GmbH in Vienna, Austria. He represented the defendant in the court procedure.
Case Reports

2018/13 Discrimination based on perceived disability found unlawful (UK)

Tijdschrift European Employment Law Cases, Aflevering 2 2018
Trefwoorden Disability discrimination, Other forms of discrimination
Auteurs Sam Minshall
SamenvattingAuteursinformatie

    The Employment Appeal Tribunal (‘EAT’) has confirmed that, even if an employee is not actually disabled for the purpose of the relevant statutory test, it is unlawful for an employer to discriminate against that employee because of a perceived disability.


Sam Minshall
Sam Minshall is an associate solicitor at Lewis Silkin LLP.

    The Polish national social insurance authority has no power to police ‘social dumping’. Neither is there any legal basis or justification for excluding workers performing work in other EU Member States from the national social insurance system based on an unverifiable assumption that social dumping is taking place.


Marcin Wujczyk PhD.
Marcin Wujczyk, PhD., is a partner with Baran Ksiazek Bigaj Wujczyk in Krakow, www.ksiazeklegal.pl.

    The Spanish Supreme Court has again ruled on the highly controversial question of whether limitations to the liability of a transferee established in a collective bargaining agreement (‘CBA’) in the context of a CBA-led transfer are valid, or whether they contravene the Spanish implementation of the Acquired Rights Directive.


Luis Aguilar
Luis Aguilar is an attorney-at-law at Eversheds Sutherland and an associate professor in Labour Law at IE University.
Case Reports

2018/9 Uber’s work status appeal rejected (UK)

Tijdschrift European Employment Law Cases, Aflevering 1 2018
Trefwoorden Miscellaneous, Employment status
Auteurs Laetitia Cooke
SamenvattingAuteursinformatie

    Following an appeal by Uber against an employment tribunal (ET) finding last year, which was featured in EELC 2017/10, that its drivers are ‘workers’ and not self-employed contractors (reported in EELC 2017-1), the Employment Appeal Tribunal (EAT) has now upheld the ET’s original decision. The EAT rejected Uber’s arguments that it was merely a technology platform, as well as its statement that it did not provide transportation services. This decision is important as it means that Uber drivers are entitled to certain rights under UK law, such as the right to holiday pay, to the national minimum wage (NMW) and protection against detrimental treatment for ‘blowing the whistle’ against malpractice. Uber has approximately 40,000 drivers (and about 3.5 million users of its mobile phone application in London alone) and so this decision has potentially significant financial consequences for the company.


Laetitia Cooke
Laetitia Cooke is an Associate at Lewis Silkin LLP.

    The Court of Appeal has overruled the recent Employment Appeal Tribunal (EAT) decision in Efobi – v – Royal Mail [2017] IRLR 956 (reported in EELC 2017/41), restoring the previous position that a claimant in a discrimination case has the initial burden of proof – which ‘shifts’ to the respondent to provide an explanation of why its conduct was non-discriminatory if a prima facie case is proven.
    The Court of Appeal disagreed with Mrs Justice Elisabeth Laing’s ruling in Efobi, that section136 of the Equality Act 2010 had made a substantial change to the law when it was introduced, on the basis that it could not be fair that a respondent should have to discharge the burden of proof without the claimant first showing that there is a case to be answered. Lord Singh ruled that it could not have been Parliament’s intention to remove this initial burden of proof when it enacted the Equality Act.


Kayleigh Williams
Kayleigh Williams is a paralegal at Lewis Silkin LLP.
Case Reports

2018/8 Insourcing of fitness services by hotel constitutes a transfer of undertaking (IT)

Tijdschrift European Employment Law Cases, Aflevering 1 2018
Trefwoorden Transfer of undertaking, Transfer
Auteurs Caterina Rucci en Alessandro De Giobbi
SamenvattingAuteursinformatie

    A change of service provider may amount to the transfer of an undertaking. While this should not be surprising in itself, the authors discuss recent changes in Italian law in this case report.


Caterina Rucci
Caterina Rucci is an attorney at law at Fieldfisher.

Alessandro De Giobbi
Alessandro De Giobbi is an attorney at law at Fieldfisher.

    The Danish Supreme Court has ruled that the Danish authorities may have incurred liability by failing to act sufficiently quickly to amend the Danish Holiday Act to align it with EU law.


Christian K. Clasen
Christian K. Clasen is a partner at Norrbom Vinding, Copenhagen.
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